Grace Davis v. State of Kerala and Johny Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944** **CRL.REV.PET NO. 863 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO.93/2020 OF SESSIONS COURT, KOTTAYAM IN ST 60/2017 OF JUDICIAL FIRST CLASS MAGISTRATE** **COURT -II, PALA** ## **REVISION PETITIONER/APPELLANT IN CRL.APPEAL 93/2020/ACCUSED:** **GRACE DAVIS AGED 74 YEARS, W/O P.C DAVIS, PARAVARAKATHU HOUSE, AMBARANIRAPPEL P,O, BHARANANGANAM, PIN - 686578 BY ADVS. N.D.DIPINGHOSH JOMON P.VARGHESE** ## **RESPONDENTS/RESPONDENTS IN CRL APPEAL 93/2020/ STATE AND** ## **COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 JOHNY THOMAS AGED ABOUT 65 YEARS, S/O THOMAS, CHEMBULAYIL HOUSE, KAROOR P.O, PALA, PIN - 686574 BY ADVS. PUBLIC PROSECUTOR ANWIN JOHN ANTONY PP-SRI.G.SUDHEER** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 CRL.REV.PET NO. 864 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO.92/2020 OF SESSIONS COURT, KOTTAYAM IN ST 44/2017 OF JUDICIAL FIRST CLASS MAGISTRATE** ## **COURT-II, PALA** ## **REVISION PETITIONER/APPELLANT IN CRL.APPEAL 92/2020/ACCUSED:** **GRACE DAVIS AGED 74 YEARS, W/O P.C DAVIS, PARAVARAKATHU HOUSE, AMBARANIRAPPEL P,O, BHARANANGANAM, PIN - 686578 BY ADVS. N.D.DIPINGHOSH JOMON P.VARGHESE** ## **RESPONDENTS/RESPONDENTS IN CRL APPEAL 92/2020/ STATE AND** ## **COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031**| |**2**|**JOHNY THOMAS**| ||**AGED ABOUT 65 YEARS, S/O THOMAS,**| ||**CHEMBULAYIL HOUSE, KAROOR P.O, PALA, PIN - 686574**| ||**BY ADVS.**| ||**PUBLIC PROSECUTOR**| ||**ANWIN JOHN ANTONY**| ||**SR.PP-SRI.RENJIT GEORGE**| ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P Nos. 863 & 864 of 2022 3 ## **ORDER** ## **Dated this the 7th day of December, 2022** These revision petitions have been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner in these revision petitions is the sole accused in S.T.No.44/2017 and S.T.No.60/2017 on the file of the Judicial First Class Magistrate Court-II, Pala and he is challenging the judgments in these cases as well as the common judgment in Crl.A.Nos.92/2020 and 93/2020 of the Court of Additional Sessions Judge-1, Kottayam, arising therefrom. The respondents in both cases are the State of Kerala as well as original complainant. 2. I would like to refer the parties in these revision petitions as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned counsel for the complainant (2[nd] respondent) as well as the learned Public Prosecutor, representing State. 4. In this matter, the complainant launched separate prosecution against the accused alleging Crl.R.P Nos. 863 & 864 of 2022 4 commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), when cheques for Rs.20,00,000/- dated 14.08.2015 and 29.08.2015 were dishonored. 5. Since the accused failed to make the payment on demand, the complainant lodged complaints under Section 142 of the N.I.Act. The Court below took congnizance of the matter and numbered the cases as S.T.No.44/2017 and S.T.No.60/2017. 6. The trial court secured the presence of accused and complainant for trial and jointly tried the above cases. During trial, PWs 1 and 2 were examined and Exts.P1 to P14 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, DW1 examined and Exts.X1 and X2 were also marked. 7. Thereafter, the trial court appraised the evidence and finally found that the accused committed offence punishable under Section 138 of the N.I.Act. The following sentence was imposed. “In the result, accused is found guilty in ST Crl.R.P Nos. 863 & 864 of 2022 5 44/2017, convicted and sentenced to undergo simple Imprisonment till the rising of the Court and to pay a compensation of Rs.20,00,000/ (Rupees Twenty Lakhs only) to the complainant under section 138 of Negotiable Instruments Act. In default of payment of compensation, accused shall further undergo simple imprisonment for 6 (six) months. If the compensation amount is realised in full, the same shall be given to the complainant as compensation under section 357(3) Cr.P.C. Accused is found guilty in ST 60/2017, convicted and sentenced to undergo simple imprisonment till the rising of the Court and to pay a compensation of Rs.20,00,000/- (Rupees Twenty Lakhs only) to the complainant under section 138 of Negotiable Instruments Act. In default of payment of compensation, accused shall further undergo simple imprisonment for 6 (six) months. If the compensation amount is realised in full, the same shall be given to the complainant as compensation under section 357(3) Cr.P.C.” 8. The revision petitioner challenged these verdicts of the trial court before the Appellate Court and the learned Additional Sessions Judge dismissed the appeals confirming the conviction and sentence passed by the trial court in Crl.R.P Nos. 863 & 864 of 2022 6 S.T.No.44/2017 and S.T.No.60/2017. 9. While impeaching the concurrent verdicts, the learned counsel for the accused/revision petitioner argued that, though the 1[st] transaction with regard to entrustment of Rs.20,00,000/- each was established by the complainant showing transfer of the said money by way of cheques, the 2[nd] transaction, alleged by the complainant, took place after three or four days of the 1[st] transaction, could not be believed and the evidence available is quite insufficient, in this regard. He also submitted that, the 2[nd] transaction is not proved in accordance with law so as to give the benefit of presumptions in favour of the complainant. 10. In this matter, in paragraph no.21 of the trial court judgment, the learned Magistrate observed that, at the time of cross-examination of PW1, he was asked about the reasons for handing over of a sum of Rs.20,00,000/for the 2[nd] time by cash to the accused, he was given reply stating that, the accused told him that, she would reach the house of the complainant in the evening only and therefore complainant had withdrew the money and kept the amount with him in cash so as to hand over the same to the Crl.R.P Nos. 863 & 864 of 2022 7 accused. Believing said version the trial court given emphasis to this evidence to prove the second transaction led to execution of Ext.P7 cheque. 11. It is pointed out by the learned counsel for the complainant that, Ext.P13 is a document executed by the accused acknowledging the transaction to the tune of Rs.40,00,000/- covered by Exts.P1 and P7 cheques and the courts below given emphasis to the said document also to prove the transaction led to execution of Exts.P1 and P7 cheques. On perusal of the judgments of the Courts below, this submission appears to be convincing. 12. In fact, either in the grounds of appeals or in the argument advanced by the learned counsel for the accused, nothing substantiated to exercise the power of revision available to this Court to revisit the concurrent verdicts in any manner. 13. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC Crl.R.P Nos. 863 & 864 of 2022 8 (Cri) 275], **State of Kerala v. Puttumana Illath Jathavedan Namboodiri** , the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): _“5. …... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come_ _to the conclusion that the High Court exceeded its_ Crl.R.P Nos. 863 & 864 of 2022 9 _jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 14. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh Ramrao Chavan**_ _**v. Dattatray Gulabrao Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is - perverse or wholly unreasonable or there is non consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135) : _“14. …... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an_ Crl.R.P Nos. 863 & 864 of 2022 10 _appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaring unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 15. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ . Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials, which would Crl.R.P Nos. 863 & 864 of 2022 11 go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 16. Since, proof of transaction and execution of Exts.P1 and P7 cheques, are the matters of re appreciation of evidence and this Court cannot look into those aspects, by re-appreciating the evidence, since, power of revision is not so exhaustive to do so. 17. In this matter, the courts below given emphasis to the evidence of PW1 to hold that, the transaction as well as the execution of Exts.P1 and P7 cheques were proved by the complainant. Ext.P13 was also given emphasis in this regard. Apart from that, the complainant examined PW2, the Secretary of Kizhathadiyoor Service Co-operative Bank, to show the encashment Rs.10,00,000/- each as per Exts.X1 and X2 cheques as alleged by the complainant to prove the 1[st] transaction involved in this matter. Thereby the benefit of twin presumptions adjudged in favour of the complainant. 18. Law regarding presumption is well settled. In this connection, I would like to refer a 3 Bench decision of Crl.R.P Nos. 863 & 864 of 2022 12 the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Sri.Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution punishable under Section 138 of the N.I Act and held as under: _“The presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specified a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is_ Crl.R.P Nos. 863 & 864 of 2022 13 _largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.”_ 19. In the decision reported in [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], _**Bir Singh v. Mukesh Kumar**_ , the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it Crl.R.P Nos. 863 & 864 of 2022 14 was held as under: _“A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.”_ 20. In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], _**M/s.Kalamani Tex & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Crl.R.P Nos. 863 & 864 of 2022 15 Sections 118 and 139 of the N.I Act it was held as under: _“Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2[nd] Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay._ _…................_ _18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 :_ Crl.R.P Nos. 863 & 864 of 2022 16 _AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that:_ _“Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”_ 21. In fact, nothing substantiated in these revision petitions to interfere with the concurrent findings of conviction as well as sentence of imprisonment to the least minimum possible, in any manner. 22. In the result, these revision petitions fails and are accordingly dismissed. 23. The learned counsel for the petitioner sought for six months time to make the payment. However, the learned counsel for the complainant zealously opposed grant of six months on the ground that, the transaction was of the year 2013 and these revision petitions have been filed at a much belated stage, though the Appellate Court's judgment was rendered during 2021. Having considered Crl.R.P Nos. 863 & 864 of 2022 17 the rival contentions, I am inclined to grant two months time to the accused from today to pay the fine and to undergo the sentence. 24. Therefore, the revision petitioner/accused is directed to surrender before the trial court on 07.02.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 06.02.2023. Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. ## **Sd/-** SK ## **A. BADHARUDEEN JUDGE**